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CRIMINAL PROCEDURE ESSAY QUESTION #2 MODEL ANSWER

Sophie, a police officer, out of uniform, showed up at Mariahs house, knocked, and asked if she could enter to enact a warrant. The warrant was a search warrant, issued by Magistrate McGuire, a former patrol cop for Statesville Police Department. The warrant stated that the first-floor of Mariahs house will be searched for a gun used in connection with a robbery, as well as two paintings which were stolen. While looking in Mariahs house, Sophie smelled what she thought to be gun powder emanating from the second floor, and she quickly, without looking for anything else, walked to the second floor, and found a gun at the top of the steps, which she confiscated. The gun had a note attached to it which listed an address. Later that day police arrived at the address listed on the note, and it turned out that two stolen paintings were found there, and confiscated. The address was a known place where stolen paintings were hid. While at her house, Mariah stated to Sophie, that, I do not know what you are here for, because I did not rob the Statesville Art Museum. Nevertheless, Sophie asked Mariah to accompany Sophie to the station-house. Sophie agreed, and as they walked in the station-house, Magistrate McGuire stated loudly: Is that the person who stole the paintings?! To which Mariah stated, I told Sophie already that I did not rob the Statesville Art Museum.

Discuss.

MODEL ANSWER

SEARCH OR SEIZURE. Mariah had her house searched by the police, and such a search would be governed under the 4th Amendment. 4th AMENDMENT. The 4th Amendment to the Constitution of the United States of America, states that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. REASONABLE EXPECTATION OF PRIVACY. A persons 4th Amendment rights are implicated where a reasonably expectation of privacy exists. This requirement is satisfied only when the defendant is personally intruded upon by government officials in defendant's person, house, papers and personal possessions. Here, Officer Sophie showed up and Mariah's house and entered to enact a search warrant. Mariah, as the owner of the house, would have a reasonable expectation of privacy in her house, person, papers and effects. GOVERNMENTAL INTRUSION. Officer Sophie was enacting her duties as a governmental official when she executed the warrant, and seized the gun and note. While it is true that Officer Sophie was out of uniform, that will not impact the fact that Officer Sophie was enacting official governmental action when she seized the property of Mariah.

WARRANT SEARCH. Pursuant to the 4th Amendment, police often need a search warrant in order to conduct a proper Constitutional search. Here, Officer Sophie needs to show that she had both a valid warrant, and that she enacted the warrant properly, in order to have a valid search under the 4th Amendment. There are four requirements that must be met for a valid search warrant: the search warrant must be issued by a detached and neutral magistrate, with probable cause, through a good faith oath or affidavit, and while stating with particularity the places and things to be searched and seized. NEUTRAL AND DETACHED MAGISTRATE. The magistrate issuing the warrant, must be neutral and detached from the police officials. The warrant was a search warrant, issued by Magistrate McGuire, a former patrol cop for Statesville Police Department. Further, Magistrate McGuire was standing in the station house when Mariah was brought in, and yelled menacingly that she may have been a thief. It is hard to see how Magistrate McGuire could have a detached and neutral stance towards search warrants, when his present behavior is in support of police work, his prior work is as a police officer, and his direct behavior towards Mariah was reprehensible. PROBABLE CAUSE. Probable cause to search exists where it is more likely than not that the place to be seized has evidence related to the crime, and it more likely than not the evidence will

be found in the place to be searched. We are given no facts to indicate whether probable cause exists, so we will continue with the next requirement. GOOD FAITH OATH OR AFFIRMATION. The affidavit by police that underlies the reasoning for the warrant, must be issued in good faith. To the extent that the search warrant affidavit was issued by Officer Sophie, there is no indication that she acted in bad faith. SPECIFICITY / PARTICULARITY. The area to be searched, and things to be seized, must be stated with particularity. Here, the search warrant stated that the first-floor of Mariahs house would be searched for a gun used in connection with a robbery, as well as two paintings which were stolen. This would be sufficient particularity. DEFECTIVE SEARCH WARRANT / GOOD FAITH DEFENSE. It appears as though the search warrant may be facially defective. A police officer cannot validly rely on a facially defective warrant, where the affidavit has no probable cause, there is failure to state with particularity the place to be searched or items to be seized, or the magistrate wholly abandons their judicial role. Here, it is clear after the fact, that Magistrate McGuire may have abandoned his judicial role as an impartial arbiter of search warrants, especially since he formerly worked as a police officer.

EXECUTION OF WARRANT. NO UNREASONABLE DELAY. There is a 48-hour staleness doctrine, under which the warrant need be executed. Here, we are not told of how close in time Officer Sophie enacted the warrant after the warrant was issued, therefore, we will proceed to the knock and announce rule. KNOCK AND ANNOUNCE. A police officer, enacting a warrant, must knock and announce their presence, that they are there as a police officer, to enact a search warrant. Here, Sophie, a police officer out of uniform, showed up at Mariahs house, knocked, and asked if she could enter to enact a warrant. Officer Sophie should have been more clear that she was a police officer, especially since she was out of uniform. SCOPE OF SEARCH. The scope of the search included the first-floor of Mariah's house, and the parameters of the search were to look for a gun used in connection with a robbery, along with two paintings. Here, Officer Sophie found a gun and a note on the second floor, and two paintings were found at another address later in the day. Inasmuch as Officer Sophie exceeded the scope of the search by going from the first-floor to the second-floor, her confiscation of the gun and note will be an unconstitutional search, unless she has a valid exception. EXCEPTIONS. PLAIN VIEW / SCENT. When an officer is in a place they have a legal right to be in, and they view something that is clearly contraband, they may confiscate the material under the plain view doctrine. While looking in Mariahs house, Sophie smelled what she thought to be gun powder emanating from the second floor, and she quickly, without looking for anything else, walked to the second

floor, and found a gun at the top of the steps, which she confiscated. A variant of the plain view doctrine, is the plain scent doctrine. Here, at the time that Sophie smelled the gunpowder, she was lawfully on the first floor of Mariah's house, pursuant to the search warrant. Therefore, she may have seized anything she could smell / see from where she stood. The problem for her is that she had to move from the position she was in, before she spotted the source of the gunpowder, the gun. Therefore, it would be difficult for Sophie to successfully enter the gun into evidence, unless she has a different and valid exception. EXIGENT CIRCUMSTANCES. Here, Sophie smelled gunpowder. She moved quickly to the second floor and confiscated the gun. It may be that she was fearful for her own safety, and thus quickly moved to ascertain the nature of the danger, in which event she may have a valid exception to exceeding the scope of the search under exigent circumstances. NOTE AND PAINTINGS. The note on the gun helped lead the police to find paintings later, which were confiscated. The note and paintings could be considered derivative to the seizure of the gun, because without the seizure of the gun, the note and paintings would not have been found.

EXCLUSIONARY RULE. A defendant who has been subject to an illegal search or coerced confession, has the right to have this evidence excluded from prosecution. A defendant must have standing to assert their rights under the exclusionary rule, and must show that their rights were violated, that they had a possessory interest in the premises, and that there was governmental conduct. STANDING. The house is Mariah's, and the gun and note were found at Mariah's house. Therefore, she has the right to move for exclusion of these items into evidence. Inasmuch as the paintings were found because of the note confiscated at Mariah's house, she would also have standing to exclude the paintings. THE GUN. Seizure of the gun took place outside the scope of the search of the search warrant, and thus it may have been an improper seizure. Sophie's best bet is to argue exigent circumstances. DERIVATIVE EVIDENCE. The gun had a note attached to it which listed an address. Any evidence illegally obtained must be excluded, along with any evidence obtained or derived from the exploitation of that illegally obtained evidence. In other words, where the original seizure is improper, here, the gun, anything else that is seized as a result of, or derivative to, the unlawful seizure, will be deemed fruit of the poisonous tree, and will be excluded from evidence. FRUIT OF THE POISONOUS TREE. Here, if the gun is seen as an improper search and seizure, the note and paintings will be the fruit of the poisonous tree (the gun), and they will likewise be excluded. However, the poisonous taint of later evidence may be purged through an intervening act of free will by the defendant, through inevitable discovery where the police would have found the evidence at a later date, or though the independent source doctrine where the police would have found the evidence through their own source of information.

Later that day police arrived at the address listed on the note, and it turned out that two stolen paintings were found there, and confiscated. The address was a known place where stolen paintings were hid. It is likely that the police would have Inevitably got around to searching a this known hideout. Further, the hideout was already known to police, thus it would constitute an Independent Source of the police. Therefore, even if the gun seizure is improper, the seizure the paintings will be purged of their taint under the independent source and inevitable discovery doctrines.

RIGHT AGAINST SELF-INCRIMINATION. The 5th Amendment to the Constitution protects the right of a defendant from being a witness against themselves. RIGHT ATTACHES. The right to be free from self-incrimination occurs when a person is under custodial interrogation by the police. CUSTODIAL. A person is within the custody of the police when, under the totality of the circumstances, a reasonable person would conclude that they were not free to leave. Here, Sophie asked Mariah to accompany Sophie to the station-house. This seems, at first glance, as a mere request. However, Sophie had just confiscated a gun, and was in the process of taking Mariah to the station house. Therefore, at the point that Sophie indicate to Mariah that they were both going to the station house, Mariah was in custody. INTERROGATION. An interrogation consists of words or actions meant to elicit an incriminating response from a suspect. BY GOVERNMENT OFFICIAL. The custodial interrogation must include a governmental official in order to fall under the protection of the 5th Amendment. VOLUNTARY STATEMENTS. Voluntary statements made while not under police custodial interrogation, will receive no protection under the 5th Amendment. MARIAH'S STATEMENT AT THE HOUSE. While at her house, Mariah stated to Sophie, that, I do not know what you are here for, because I did not rob the Statesville Art Museum. Mariah's statement took place before Mariah was asked to go to the station house, and without any prompting by Sophie. Therefore, absent both custody and interrogation, Mariah's statement will receive no protection under the 5th Amendment, and it will be considered a voluntary statement. MARIAH'S STATEMENT AT THE STATION HOUSE. When Mariah entered the station house while under the custody of Sophie, Magistrate McGuire stated loudly: Is that the person who stole the paintings?! To which Mariah stated, I told Sophie already that I did not rob the Statesville Art Museum. Here, there is custody, and McGuire's loud, startling statement, could easily be seen as a ploy to scare Mariah into stating something which would be incriminating. Mariah did say something incriminating as a result of McGuire's interrogation, and thus the statement at the station house would be excluded.

MIRANDA RIGHTS. Miranda rights include the right to remain silent, and the right to an attorney. Mariah had not been read, or waived, her Miranda rights. EXCLUSIONARY RULE. Mariah will seek to exclude both statements from trial. STANDING. Mariah personally made both statements, and thus she has standing to move to exclude. As stated above, the first statement was a voluntary statement, and will not be excluded. However, the second statement was made while under a custodial interrogation by governmental officials, and Mariah had not been read and waived her Miranda rights before she made the second statement. Therefore, the second incrimination statement will be excluded.